So, back in my old post wherein I disagree with J. Neil Schulman, Schulman himself has dropped by to publicly disagree with me. This is good, because that’s exactly what a comments section is for. Anyways, in the course of insisting that he is right and I am wrong, he reminded me that his preferred term, instead of “intellectual property”, is “media-carried property”, or MCP for short.

Now, I doubt that Neil intended to reference the tyrannical Master Control Program when he picked the term “media-carried property”, but, nerd that I am, I can’t resist making the connection. And there is a deeper connection, but it is one that Neil has consistently refused to acknowledge.

The questions of how copyrights, trademarks, and patents are currently defined and enforced by States are an entirely separate issue from the arguments I have been making since the 1980’s about property rights in identity and information objects.

For now I would be entirely satisfied if libertarians and anarchists recognized my property rights in the things I create and respected my right to license copies, using no other enforcement mechanism than social preferencing.

And… that’s it. The end! But I am not satisfied. This tells us nothing at all about what happens when social preferencing fails. What then?

Neil’s theories on matter-based property do not suffer from this lack. In the event that someone does not recognize your property rights in the physical world, Neil says that you have the right to shoot them, and he suggests that you carry a gun. He wrote a whole book on the matter, called Stopping Power (I haven’t yet read it, though I expect that I’ll agree with most of what it says). This is good, because you can’t expect social preferencing to always work. You need a backup plan when people break the rules, and carrying a gun is a good backup plan.

But what about when someone takes your media-carried property? What if they break through your copy protection and make it available as a Torrent? What do you do then, Neil? But he has never answered this question. This situation has been presented to him many times, by both friends and enemies, and he hasn’t even acknowledged it. This leaves a big, gaping hole in his theory of property rights in information.

Of course, Neil is not the first person to claim property rights in information. Many people before him have set out to do the same thing, and they have come up with solutions to fill that hole. Solutions like digital rights management, trusted computing, broadcast flags, notice-and-takedowns, ISP policing, and copyright bots. These all work together to do two things: take away people’s privacy, and take away people’s control over their own machines. And this is where Neil’s MCP runs into Tron‘s MCP. The only way to complete Neil’s theory, and provide information owners a means to defend their claims, is to control all communication. The entire network must be monitored and controlled, and any break-ins must be shut down swiftly and decisively. The media companies have known this for a long time, and they have fought to establish that control over the World Wide Web. To a great extent, they have succeeded. Their copy-protection schemes have infected all of our devices, and their monitoring systems hover over their world, ready to cut off and punish anyone who shares information without their permission. Like the Master Control Program, they reach into systems and appropriate programs and insist that they can run things better than we can.

Every time you get a DMCA notice, just imagine it’s from this guy. You’ll feel better.

This is a massive problem for Neil’s theory, because all of these measures invade people’s property and reduce their control over their own lives. Worse, they all work through the mechanism of State power, and they increase the State’s control over us. We can’t accept any of this. But then how can owners of media-carried property protect their property from invasion? Neil’s theory makes no sense anymore, because there’s no way to implement it. It’s as if he were advocating for the right of self-defense but refusing to let people own weapons. How does it work?

And what of the fact that these controlling measures are all being implemented? Here in the real world, the MCP is winning. Copyright laws continue to get stricter, anti-piracy measures continue to get more invasive, and ordinary citizens continue to get squeezed, and J. Neil Schulman, proud libertarian, is silent. If Neil will not fight for our liberty, who will?

Luckily for us, some people are smarter than Schulman. Like Flynn and Tron, they work to create systems where all information is free and open. They create open-source software that will not betray its users to outside controllers. They support laws that protect our privacy and our right to communicate. They find ways to crack DRM and defeat broadcast flags. They give us the power to protect our liberties. They go by many names: copyfighters, free software advocates, cypherpunks, pirates, and so on. But they all have one thing in common: they fight for the Users.

Real programmers do not normally wear cool outfits like this guy’s. Sorry, everyone.

If these people win, no one will be able to control the network. Information will flow freely. And instead of being a glaring contradiction, Neil’s theory of MCP will simply be left incomplete – permanently, fatally incomplete, like a human body without a heart.

And that is why I keep ragging on Neil. He never acknowledges this problem with his theory (that is, that claims to MCP cannot be enforced without the aid of a total surveillance state). He seems to consider the question of enforcement to be totally irrelevant. Well, Mr. Schulman, you’re wrong. No matter how many nerd jokes I make, I still have to live in reality, and in reality, your claims to media-carried property fail. People do not naturally respect such claims, and even when they try, those who do not respect such claims always have the power to ignore them. Even in our less-than-free society, piracy is easy and rampant, in spite of the State’s best efforts to crush it. Do you think that people will just stop pirating when the State is gone?

If the future is libertarian, then it will run on Free Software and distribute Free Culture, all the better to serve free people. So come on, Neil. Get with the program. Fight for the Users.

I have previously said some mean things about Jack Valenti, late head of the MPAA. I am not here to unsay these things, because Jack deserves to have some harsh words thrown at him. After all, he’s the guy who famously compared the VCR to a serial rapist and killer:

We are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. And it is like a great tidal wave just off the shore. This video cassette recorder and the blank tape threaten profoundly the life-sustaining protection, I guess you would call it, on which copyright owners depend, on which film people depend, on which television people depend and it is called copyright…

“Mr. Chairman, if we don’t prevent people from recording shows from off the air, they will rape our profit margins and murder our business model!”

But where there’s smoke, there’s fire, and someone capable of saying something that wrong in front of Congress has almost certainly said all kinds of other wrong things. So let’s have a look at the other wrong things that Jack Valenti has said.

Let me just remind everyone that fair use is defined in law and it’s considered very important by many people. Jack himself displays some knowledge of the reality of fair use later on in both interviews, but it’s clear that he doesn’t like it. Now, it so happens that I don’t like “fair use” much, either. My problem with fair use is that it’s too weak. In the words of Larry Lessig, “fair use in America simply means the right to hire a lawyer to defend your right to create”. That’s not enough for me. But for Jack, it’s just too much that fair use exists at all, and if he had his way, he’d do away with it.

Copyright term extension has a simple but compelling enticement: it is very much in America’s economic interests.– from this testimony before the 104th Congress

Michele Boldrin and David K. Levine disagree, and they’ve made a thorough case here. They’re not the only ones; Rufus Pollock has made a case that optimal copyright terms ought to reduce over time, and that the current optimum is probably 15 years (I still think the optimal term is zero, but I’m an edge case). But in the face of a long tradition counting such members as Thomas Macaulay and Thomas Jefferson and now bolstered by respectable academics and economists, Valenti dismisses them all and declares that his view – the opposing view – is “simple but compelling”. You’d like to think so, wouldn’t you, Jack?

Whatever work is not owned is a work that no one protects and preserve. The quality of the print is soon degraded. There is no one who will invest the funds for enhancement because there is no longer an incentive to rehabilitate and preserve something that anyone can offer for sale. A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. How does the consumer benefit from the steady decline of a film’s quality?– from the same testimony before the 104th Congress

Evidently, Jack never heard of Project Gutenberg, or the Internet Archive, or any number of people who happily take upon themselves the task of preserving and sharing knowledge and culture, especially when that culture is in the so-called “public domain”. He talks about information as though it were a physical thing that could wear out, ignoring the fact that information is naturally renewable, and that culture grows in value the more it is shared. A public domain work is “owned” by everyone, meaning that everyone has the opportunity to protect, preserve, rehabilitate, and enhance it. If you want a really good study of how the “public domain” helps make works available when copyright fails, look no further than the analysis of Paul Heald, who wrote a couple of papers showing how old books and music just tend to disappear until their copyright expires, at which point they come surging back to life (Christopher Sprigman provides a good summary). In short, Jack is wrong, and we have the data to prove it.

But you’ve already got a DVD. It lasts forever. It never wears out. In the digital world, we don’t need back-ups, because a digital copy never wears out. It is timeless.– from the interview with Derek Slater

Here, Jack is failing to understand the utility of digital information. No copy lasts forever, and digital copies are no exception (bit rot: if you’ve been waiting to copy that floppy, it might already be too late). What makes digital special is how easy it is to make copies. A digital file is like an amoeba; by itself it might die easily, but it can reproduce at a fantastic rate, and even if they all start dying, you can make new ones as long as you have one left. Libraries have clued in to this and have organized the LOCKSS Program: Lots Of Copies Keep Stuff Safe. Back-ups are what give digital copies their timeless quality. Would you condemn the digital world to die just to prevent copies, Mr. Valenti?

I have said, technology is what causes the problem, and technology will be the salvation of the problem. I really do believe we can stuff enough algorithms in a movie that only the dedicated hackers can spend the time and effort to try to plumb through those 1,000 algorithms to try to find a way to beat it. In time, we’ll be able to do this, because I have great faith in the technological genius that’s out there…
It may be possible to so infect a movie with some kind of circuitry that allows people to copy to their heart’s content, but the copied result would come out with decayed fidelity with respect to sound and color. Another would be to have some kind of design in a movie that would say, ‘copy never,’ ‘copy once.’– from the interview with Peter Rojas

Ah, DRM. Good folks like Mike Masnick have worked very hard to explain why DRM is bad from a business point of view. But since Valenti is talking about technology, let’s take a more technical point of view. There’s one big technical problem with DRM: it’s impossible. If you’ve ever wondered how hackers keep beating DRM systems so quickly, here’s Cory Doctorow to explain:

In DRM, the attacker is *also the recipient*. It’s not Alice and Bob and Carol, it’s just Alice and Bob. Alice sells Bob a DVD. She sells Bob a DVD player. The DVD has a movie on it — say, Pirates of the Caribbean — and it’s enciphered with an algorithm called CSS — Content Scrambling System. The DVD player has a CSS un-scrambler.

Now, let’s take stock of what’s a secret here: the cipher is well-known. The ciphertext is most assuredly in enemy hands, arrr. So what? As long as the key is secret from the attacker, we’re golden.

But there’s the rub. Alice wants Bob to buy Pirates of the Caribbean from her. Bob will only buy Pirates of the Caribbean if he can descramble the CSS-encrypted VOB — video object — on his DVD player. Otherwise, the disc is only useful to Bob as a drinks-coaster. So Alice has to provide Bob — the attacker — with the key, the cipher and the ciphertext.

The talk gives some more background on crypto theory, so do read the original if you’ve still got questions. But the important info is all there: in order to be able to watch the movie, the customer has to able to unravel those “1,000 algorithms” on the DVD, and if they can unravel those algorithms to watch the DVD, they can unravel them to copy and share it as much as they please. And then there’s things like the analog hole, and network effects (if just one person cracks the DRM, they can share their liberated info with the whole world). In short, Valenti’s hope of technical “salvation” is a pipe dream.

Now, back to Valenti:

If Congress lets cable systems retransmit local broadcast stations it will not only be magnifying and sanctifying a terrible injustice, but it will have created a huge parasite in the marketplace, feeding and fattening itself off of local television stations and copyright owners of copyrighted materials. We do not like it because we think it would be wrong and unfair.– from testimony given before Congress in 1972, quoted by Edward Felten

Let me get this straight: if you broadcast something on the open airwaves for everyone to see, and someone receives it and copies it and retransmits it, that’s a “terrible injustice”?

No. No way. A terrible injustice is when you can’t feed your family because you used up your life savings paying off the local protection racket. If you’re going to take your signals and broadcast them for all the world, you don’t get to complain when someone else records them and uses them. This is the same crap that he tried to pull on the VCR, but the difference is that when he tried this argument on cable, people bought it, and cable was forced to pay retransmission fees (Timothy Wu provides historical background and analysis in this paper).

Regarding the VCR, I like this statement from Murray Rothbard:

If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it.– from this call for papers

I apply that same logic to cables, and say that if a cable company owns a set of cables and a good TV antenna, they can record and retransmit whatever they like, and the TV and movie people can just sit on their hands and deal with it. But Valenti was never content to do that. He knew how to get our government to give him his way, and he served the MPAA well, much to the detriment of the rest of us.

Now, if I may undercut myself a little, I don’t actually disagree with everything that Jack Valenti said. He also said a lot of things against censorship. He advocated the rating system we’re all familiar with as a way to communicate to people what was in a film, so they could make their own decisions. I like that, and I’m glad he did that. He routinely said that he wanted parents to be in charge of what their kids saw, and I thank him for saying so, and for working to make it so.

But to end this on a high (low) note, let me quote Jack saying one more wrong thing:

I sleep each night a little better, a little more confidently, because Lyndon Johnson is my president. For I know he lives and thinks and works to make sure that for all America and indeed, the growing body of the free world, the morning shall always come.– from an address to the Advertising Federation of America, 28 June 1965

In my never-ending quest to publicly disagree with every opinion I dislike, I today turn my attention to the wonderful website that is Overthinking It, your one-stop shop for deep intellectual scrutiny of shallow popular culture, and this less wonderful article in it, titled Why Cory Doctorow’s “Pirate Cinema” Makes Me Root for Big Content by Matthew Belinkie. Yes, I am going to be critiquing a critique of a book. Now, as a critique of the general literary quality of the book, I can say nothing, because I haven’t read “Pirate Cinema”, although of course I could at any time (seriously, check out the official website. Cory goes out of his way to make his stuff accessible). No, I’m going to be criticizing Matthew Belinkie’s view of reality. I may be misreading him here, but it seems to me that his view of reality is substantially different from mine, especially when it comes to copyright and “piracy” and all that jazz, and I feel that his views on these things negatively affect his reading of the book.

Again, I haven’t read “Pirate Cinema”, so when it comes to talking about the style and feel of the book, I’m going to give Matthew the benefit of the doubt, because I’m pretty sure that he did read it, all the way through. That said, on the criticizing!

A short while ago, before formally quitting Livejournal, I wrote a post in which I took J. Neil Schulman to task for his pro-copyright position (I’ve included the full text below the cut). Since writing it, I’ve had a few thoughts that I’d like to add to it.

For now I would be entirely satisfied if libertarians and anarchists recognized my property rights in the things I create and respected my right to license copies, using no other enforcement mechanism than social preferencing.

He then makes this observation: “”Rights” to me, and I think to a lot of people, implies things that are legitimately addressed by force.” This, I believe, is the crux of the matter.

I’m an infrequent commenter on Techdirt, and my replies there occasionally get rather long-winded. One particular reply, to this post, got long enough that I feel it’s worthy of a post all by itself. So, without further ado, In defense of pirates:

There is an idea that, in my opinion, is very important in any discussion of copyright/patent/IP. The idea is this: “Content creators deserve to get paid for each and every use of their content”. Whether that content is a song, a program, a design, or any other kind of information, the idea is that the maker of that information has a right to be rewarded for every use of that information.

This idea appeals to our notions of fairness, especially when you consider an analogous physical situation: the skilled craftsman, whom I will call “maker” because I’m a Doctorow fanboy. A very good maker has the power to make something that no one else can make, like a Stradivarius violin, and there’s no way to get a violin like that without either buying it from Stradivarius or buying it from someone else who bought one… or stealing it, of course, but we have ways of preventing theft. The point is that the maker has total control of how many copies there are of what they sell, and whenever you see a copy in the wild, you can safely assume that the maker got paid for it.

Moving back to the realm of information, we still have skilled makers, making patterns of information that no one else could have made. We value what they make, and we want them to be rewarded, just as the physical makers are rewarded… and the information makers want to get paid, so our interests line up. So far, so good.

But now we run into trouble: information, unlike physical goods, is very easy to copy. It may take a genius to write a good book, but any common scribe can copy it. And then there are the copy machines. In fact, go take a look at all the books you own, and tell me: how many of them are copies? In my case, the answer is: all of them. I don’t own any original manuscripts (unless you count my own writings, but I don’t consider my jumbled piles of scribblings to be books). If I want to read something by, say, Edgar Allen Poe, I don’t have to ask Poe to write me a fresh copy, nor do I have to deprive anyone else of their copy. I just need someone who’ll let me make a copy of their copy. And whenever I see a copy of Poe’s work in the wild, I can usually assume that Poe wasn’t paid for it, since the vast majority of existing copies (including the one on my hard drive) were made long after his death!

Now, this offends our notions of fairness! “How can someone get something for free? Someone had to have lost something!”, we think. And so we call copying “theft of intellectual property” or “piracy”, because it feels like something got stolen. But this is wrong. Nothing has been stolen. No one’s purloined a violin. Neither the maker nor the customers have lost anything when one customer makes their own copies and gives them away.

Now this is the point in the discussion where pro-copyright folks bring up sunk costs. It takes time, talent, and energy to make good content, just as it does to make a good violin. Surely the content deserves some protection, yes? But wait! Somebody moved the goalposts. “Sunk costs” didn’t even come up when we were discussing the Stradivarius. Why bring them up now?

But more generally, sunk costs are irrelevant, for 2 reasons:
1. There is no direct relation between sunk costs and quality. There’s a lot of literature on this subject, but here’s my favorite piece of evidence: going by official records, the most expensive film in history was Spider-Man 3. Whether you count inflation or not, that’s the top. Worth the investment? I didn’t think so.
2. There is no end to the amount of monopoly that we can justify by appealing to fixed costs. We could even justify slavery (The landowners put a lot of time and money into raising those negroes, so don’t they have a natural right to claim the product of the negroes’ labor?). Unless we’re trying to justify the total state, we need to do better than to appeal to costs.

In fact, let me harp on that second point some more. Sunk costs were the justification for DRM. And what is DRM? It is the loss of control of your own computer. It invades your privacy and takes over your property. Snowden’s leaks are only the latest reminder of how dangerous this sort of thing is. Crooks and elites are all too eager to gain control of our lives, and we shouldn’t be giving them any opportunity to do so. That’s why DRM is inherently bad (Why, Mozilla? Why?). I won’t let anyone try to justify it with a sob story of how much it costs to make good cinema.

Now then, if DRM can’t be justified on the basis of sunk costs, what can be justified? For the effects of copyright are in need of justification.

Remember the central idea, that content creators deserve to get paid for each and every use of their content (or at least, for every copy). The practical effect of this is to deny customers their freedom to communicate. They must either report to the creator for every copy they make and submit to a fine, or they must refrain from copying at all. This is a broad prior restraint on speech and press. Is it justified?

It gets worse. All manner of communication goes on in private, and all of it is potentially full of illicit copies. If we want to pay the creators for every copy, we’ll have to either revoke the right to privacy in order to track down the copies, or we’ll have to pass a blanket tax on private communication (in effect, assume that all people are guilty and punish them in advance). The current U.S. legal system has both the loss of privacy and the punitive tax. Are either of these justified?

In summary, the idea of getting paid for every copy is nice, but there’s no way to implement it without compromising or abandoning other nice ideas, such as free speech, privacy, presumption of innocence, and secure ownership of personal property. That’s a lot to give up, and for very questionable benefits, too.

That’s why I have no qualms with “piracy”, and I refuse to condemn the file-sharers. Not because they’re heroic or anything like that, but just because they’re doing nothing wrong. Copying, sharing, and ruining people’s business plans are natural human activities, and no one has any business trying to outlaw them.